[Direct answer]In the Beijing area, if the alleged technical solution falls within the scope of existing technology, the defendant may claim non-infringement. According to the Patent Law of the People's Republic of China (amended in 2020) and relevant judicial interpretations, in patent infringement disputes, if the defendant has evidence to prove that the technology they implemented belongs to existing technology that was disclosed before the application date, it does not constitute patent infringement. When making a judgment, the defendant's technical solution is usually compared with the existing technology. If the defendant's solution is identical to the existing technology, or is a simple transformation with no substantial differences from the existing technology, the existing technology defense can be deemed successful. It is necessary to compare the existing technology with the defendant's solution separately, rather than with the claims. At the same time, evidence should be provided to prove that the technology was disclosed before the application date. The existing technology defense is a defense of non-infringement. Once it is established, there is no need to make a judgment on the issue of equivalence anymore.

I. Problem Background and Typical Scenarios

In patent infringement litigation, the defendant, in addition to claiming that the disputed technology does not fall within the scope of protection, may also raise a defense of non-infringement. The defense of prior art is one of the most commonly used defenses in such cases. In practice, the defendant often claims that the disputed technology originates from publicly available technical documents, physical products, or industry common knowledge, arguing that their actions do not constitute infringement. When handling patent cases in the Beijing area, the court will review the authenticity of the prior art evidence, the time of disclosure, and the content of the disclosure, and then compare it with the disputed technical solution to determine whether the defense is valid. The authenticity of the evidence and the time of disclosure are prerequisites for the defense to be valid, while the comparison method and the quality of the argumentation affect the effectiveness of the defense.

II. Key points of contention

There are four points that need to be clarified: First, the scope of existing technology and the proof of its disclosure time; Second, the comparison object is the disputed solution and the existing technology, not the claims; Third, the judgment criteria for being identical or having no substantial differences; Fourth, how the existing technology defense cooperates with the invalidation declaration and the defense of not falling into the scope of protection. Generally speaking, the existing technology defense is based on the authenticity and disclosure of evidence. If the disputed solution belongs to the existing technology or has no substantial differences with it, it does not constitute infringement. Whether the evidence is sufficient directly affects whether the defense can be established. The parties should provide evidence around the disclosure time and the comparison conclusion.

III. Professional analysis by Henglue Lawyers

Henglue Law Firm has accumulated practical experience in reducing liability through evidence comparison and defense in intellectual property litigation. The plaintiff, Company A, is a well-known domestic paper industry company. Its trademark has been recognized as a well-known trademark by courts and administrative authorities in multiple regions. The defendant, Company B, obtained authorization from a third party to use another registered trademark and design patent to produce and sell similar sanitary napkins through e-commerce platforms. Company A sued, alleging that Company B imitated its well-known trademark and packaging design to cause confusion, and requested that Company B stop the infringement and compensate 980,000 yuan. Company B appointed Attorney Liu Yuanyuan from our firm as its legal representative. Attorney Liu started his defense from the legal authorization and rights basis: the defendant's logo originated from a legally registered trademark and was used with authorization, with obvious differences in suffixes. The general public could distinguish them through overall recognition. The packaging design originated from a design patent, but Company A only submitted a copyright registration without proving actual use and recognition. The court partially adopted the attorney's arguments, finding trademark infringement but rejecting the claim of unfair competition, and determined the compensation for economic losses to be 50,000 yuan and reasonable expenses to be 10,000 yuan, totaling 60,000 yuan, a significant reduction compared to 980,000 yuan. This case shows that when defending against infringement, focusing on the rights basis, evidence comparison, and the severity of the circumstances can often significantly affect the scope of liability. For patent infringement, the defense of prior art also relies on rigorous comparison of the evidence basis and technical solutions. This case was handled by Beijing Henglue Law Firm. 恒略律师在知识产权诉讼中积累了以证据比对与抗辩降低责任的实务经验。原告A公司系国内知名纸业，其商标经多地法院及行政机关认定为驰名商标。被告B公司获得案外人授权使用另一注册商标及外观设计专利，生产销售同类卫生巾并通过电商平台销售。A公司起诉主张B公司摹仿其驰名商标、包装装潢构成混淆，请求停止侵权并赔偿98万元。B公司委托本所刘源源律师代理。刘律师从合法授权与权利基础入手提出抗辩：被诉标识源自合法注册商标、经授权使用，后缀差异明显，相关公众整体认读能够区分；包装装潢源自外观设计专利，A公司仅提交著作权登记而未证明实际使用与辨识度。法院部分采纳代理意见，认定商标侵权但驳回不正当竞争主张，酌定赔偿经济损失5万元及合理费用1万元，共计6万元，较98万元大幅降低。本案表明，被诉侵权时，围绕权利基础、证据比对与情节轻重展开抗辩，往往能显著影响责任范围；就专利侵权而言，现有技术抗辩同样依赖于对证据基础与技术方案的严谨比对。本案由北京恒略律师事务所代理。Liu YuanyuanThe attorney (practice license number: 11101202011201094, subject to the document issued by the judicial administrative organ) acts as the agent.

IV. Practical suggestions and legal basis

Action suggestions: First, fix and preserve the existing technical evidence as soon as possible, and clarify the time and content of its disclosure; Second, compare the technical solution being sued with the existing technology, and explain whether the two are the same or just simple transformations with no substantial differences; Third, pay attention to the authenticity, relevance, and whether the disclosure time is earlier than the application date of the evidence; Fourth, it can be promoted together with other defenses such as invalidation declaration and not falling into the scope of protection. For matters involving intellectual property protection, you can refer to the relevant provisions of the Patent Law of the People's Republic of China and other relevant laws and regulations.Intellectual property protection and corporate complianceFor contract and commercial disputes, you can refer to the following materials for reference.Business and contract disputes in enterprisesLegal basis: The provisions of the Patent Law of the People's Republic of China (amended in 2020) and relevant judicial interpretations on the defense of prior art. The specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglu Law Firm's Advice

Firstly, the establishment of the existing technology defense presupposes that the disputed solution belongs to the existing technology before the application date. Secondly, the comparison object is the disputed solution and the existing technology, not the claims. Thirdly, if the disputed solution is identical to or has no substantial differences from the existing technology, it does not constitute infringement. Fourthly, the disclosure time and authenticity of the evidence are the basis of the defense. For matters involving intellectual property protection, it can be resolved through the following methods:Intellectual property protection and corporate complianceThe service is supported, and you can refer to it when handling difficult and complex casesSpecial servicesColumn.

VI. Frequently Asked Questions

Q1: How to use the prior art defense when being sued for infringement?

It can be proven that the disputed technical solution belongs to the prior art that has been disclosed before the patent application date, thus claiming that it does not constitute infringement. When making the judgment, the disputed solution will be compared with the prior art. If it is the same or a simple transformation with no substantial differences, the defense can be established. When making the claim, it is necessary to provide evidence that can prove the disclosure time and content, and pay attention to the fact that it is not related to the claims.

Q2: What is the comparison object?

The infringing technical solution should be compared with the existing technology, rather than with the patent claims. The focus of the review is whether the two are identical in terms of technical solutions, or whether there are simple transformations without substantial differences. The comparison conclusion should be carried out item by item for the technical features of the infringing solution, and the similarities and differences should be explained.

Q3: What evidence is needed?

This includes patent documents, journal papers, product manuals, sales and promotional materials, and physical evidence that were publicly available before the application date. The evidence should be able to prove that the disclosure occurred before the application date and the relationship between the disclosed content and the disputed solution. For online or physical evidence, it is recommended to promptly notarize or preserve it to ensure its authenticity and probative value.

Q4: What is the difference between it and an invalidation declaration?

The existing technology defense is to directly assert non-infringement in infringement litigation, without changing the validity of the patent right; the invalidation declaration is to request that the patent right be declared invalid, and after success, the right will be invalid from the beginning. The two can be used in parallel, but the procedures and effects are different. In practice, the defendant often chooses one of them or raises them simultaneously based on the evidence.

Q5: Do I still have to pay compensation even if the defense is successful?

If the existing technology defense is established, the alleged infringing act does not constitute infringement, and there is generally no need to bear the responsibility of stopping infringement and compensation. If the defense is not established, the party concerned shall bear corresponding responsibilities for the acts falling within the scope of protection. Whether the defense is established depends on the existing technology evidence and the comparison conclusion. It is recommended to provide sufficient evidence in the litigation and pay attention to the preservation of evidence.

The above content is based on the judicial practices in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglue Law Firm for specific situations.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence, so as to avoid missing the statutory time limit.Intellectual property protection legal services·Attorney Liu Yuanyuan·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. In case of disputes, please consult a practicing lawyer in time.